Prenuptial Agreements

PRENUPTIAL AGREEMENTS

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What is a prenuptial agreement?

A prenuptial agreement is a contract between two people who are contemplating forming a marriage or civil union. A prenuptial agreement addresses the parties’ respective rights and obligations in the event of a divorce. Many people misunderstand the purpose of a prenuptial agreement. They assume that that only couples who do not believe in the longevity of their marriage would sign a prenuptial agreement or that they are used only by wealthy husbands to prevent their wives from accessing their wealth. However, financial conflicts are the second leading cause of divorce. High levels of debt and poor communication lead to stress and anxiety which can tax a marriage. Therefore, drafting a mutually beneficial prenuptial agreement is one of the most responsible and practical steps you can take before getting married. Prenuptial agreements serve a variety of purposes, including protecting both spouses’ property rights, avoiding stressful and intensive litigation in the event of a divorce and detailing how property should be distributed if a spouse passes away.

What makes prenuptial agreement valid?

In order to be valid, premarital agreements must be in writing and signed by both parties. Prenuptial agreements need not be witnessed or filed with any governmental agencies or courts.


Prenuptial agreements become effective only after the parties get married. If the marriage never occurs, any prenuptial agreements are void. Prenuptial agreements can be amended or revoked after marriage by the written agreement of both spouses. 

When is a prenuptial agreement appropriate?

If you have been previously married and have been through an expensive and litigious divorce, a prenuptial agreement is a great way to ensure that this does not happen again. Any issues that are appropriately resolved in the premarital agreement will not have to be litigated in a potential divorce. This can save both parties significant money on attorney fees, as well as a significant amount of stress and negative feeling toward one another.

 

Another reason parties may want a prenuptial agreement is to protect assets acquired prior to the marriage, especially if one spouse has significantly more assets than the other. A prenuptial agreement can prevent these assets from being considered marital property that is subject to division in the event of a divorce. 

 

Finally, if you have children from a prior marriage, you may want to ensure that your premarital assets are preserved for their benefit rather than divided in the divorce. A prenuptial agreement can accomplish this.

What do prenuptial agreements include?

Most financial matters, such as assets and business interests, are fair game when deciding what to include in a prenuptial agreement. This can include:

 

  • Maintenance (also called alimony or spousal support);
  • Division of assets and liabilities;
  • Payment of attorney fees;
  • Protection of businesses and intellectual property; and
  • Nearly any other financial issue the couple wants to address.

 

While most financial issues may be addressed, prenuptial agreements cannot address issues related to children the couple has or may have in the future. Issues that cannot be addressed in a prenuptial agreement include parental allocation, formally known as custody, parenting time and child support and/or child related expenses. Illinois doesn’t allow these items in a prenuptial agreement because it is against public policy to contract for any matter regarding the welfare of a child.

What should I know before signing a prenuptial agreement?

Like all contracts, the terms of the agreement must be entered into freely and voluntarily. The parties must enter into the agreement knowingly, willfully, and free from duress, coercion or mistake of fact. Illinois law addresses these issues by requiring that each party fully disclose their assets and liabilities prior to the execution of the agreement. This mandatory disclosure allows each person to make an informed decision. Since all valid prenuptial agreements must meet the above criteria, any agreement that falls short of Illinois law may be rendered null and void, in whole or in part.


Should you need to have a prenuptial agreement drafted, reviewed, or defend against the enforcement of a prenuptial agreement, do not hesitate to contact us. We will guide you through the process and let you know what options you may have.

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